FAYSUDEEN Vs. KADER MOHIDEEN

JUDGEMENT

(1.) THE plaintiff is the revision petitioner. He filed the suit O.S.No:211 of 2001 for permanent injunction based on the Hibba given to himself and his brother by Ayesha Bibi and under the said Hibba, the first defendant is granted mere right of enjoyment and the vested interest in the suit properties is given in favour of the plaintiff and his brother.

(2.) THE defendants in their written statement pleaded that without a prayer for declaration, the suit is vitiated. the first defendant is in constructive possession of the suit property under the Hibba and so, the plaintiff cannot seek to amend the plaint to declare that the first defendant is in constructive possession for and on behalf of the plaintiff.

(3.) A perusal of the order passed in the Interlocutory Application would show that the firs defendant has remained ex parte. The 2nd and 3rd defendants have filed their written statements on 2.9.2002. Thereafter the present I.A., has been filed only on 12.11.2003 which was filed for default on 20.4.2004 and the suit was also posted on 12.8.2004. Thereafter the plaintiff filed I.A.No.1053 of 2004 on 18.8.2004 to restore I.A.No.21/2004 which was dismissed for default on 20.4.2004 and it was restored and enquiry was conducted. The prayer of the plaintiff in the amendment petition is to declare that the first defendant is in constructive possession of the suit property for and on behalf of the plaintiff. As rightly held by the learned District Munsif, when the suit is for bare injunction, by seeking the amendment, the plaintiff himself admits that he is not in possession of the suit property. Further, unless and until the oral Hibba is proved by the plaintiff, he cannot seek for any relief to the suit property. Moreover, when it is admitted in the plaint itself that the first defendant is in constructive possession, the relief of declaration of such constructive possession is unnecessary.